Gabbai v R.

Where intentional penetration is disputed in a rape trial, a route-to-verdict document must clearly require the jury to decide that essential element. Previous allegations may be admissible under Criminal Justice Act 2003 section 100 where there is an evidential foundation from which falsity could properly be concluded and the material is substantially important.

Evidence of a complainant’s sexual behaviour may bear separately on consent and reasonable belief in consent under Youth Justice and Criminal Evidence Act 1999 section 41. Cross-admissibility between sexual allegations requires a logically relevant similarity or propensity. Widely different allegations cannot be treated as mutually reinforcing merely because both involve unwanted conduct during sexual activity.

The appellant was convicted at the Crown Court at Kingston upon Thames of raping VG by penetrating her without a condom and of raping NR by anal penetration. He was acquitted of the remaining allegations.

He challenged, among other matters, the route-to-verdict direction on intentional penetration, the exclusion of NR’s historic accounts and sexual-behaviour evidence, the exclusion of messages concerning VG, and the cross-admissibility of the allegations. He also challenged the absence of a bad-character notice and the safety of the verdicts.

The central issue was whether the cumulative effect of the identified errors rendered the two convictions unsafe.

Decision

1. Appeal allowed. The convictions were unsafe and were quashed. The court would consider applications concerning a retrial.
2. Rape under Sexual Offences Act 2003 section 1 requires intentional penetration. The route-to-verdict document asked whether anal penetration occurred, but omitted whether it was intentional, despite the appellant’s case that any anal penetration could have been accidental. The document was deficient because jurors may rely heavily on such a guide. This error alone might not have made the conviction unsafe, but it was material in combination with the other errors.
3. The acquittals on the other counts concerning NR did not make the anal-rape verdict logically inconsistent. Applying R v Fanning [2016] EWCA Crim 550, a jury may accept a complainant’s evidence on one count while retaining doubt on another. It was rationally possible that the jury relied on NR’s evidence where the video arguably supported it, but not where it lacked that support. That ground was dismissed.
4. The exclusion of NR’s historic accounts was erroneous. Her recorded doubts about whether earlier events were rapes, and material suggesting that she might have described herself as lying or seeking attention, provided an evidential foundation from which earlier complaints could properly be found false. The material had substantial importance to credibility and, separately, to the appellant’s reasonable belief in consent. It should have been admitted under Criminal Justice Act 2003 section 100.
5. Under Youth Justice and Criminal Evidence Act 1999 section 41, the reasonable-belief issue was distinct from actual consent. Material bearing on reasonable belief was admissible under section 41(3)(a), because its main purpose was not merely to impeach NR’s credibility. Material bearing on actual consent was highly similar in relevant respects, but could not pass the statutory temporal requirements in section 41(3)(c). The separate exclusion of VG’s earlier messages was upheld because they added nothing material to the condom issue.
6. The allegations of VG and NR were too dissimilar to be cross-admissible, whether as coincidence or propensity evidence. One concerned non-consensual condom removal during an otherwise consensual relationship; the other concerned violent penetration alleged against a stranger. The jury should not have been invited to treat them as mutually reinforcing. The absence of a bad-character notice, and the late resolution of cross-admissibility, compounded that error.

Viewed cumulatively, these defects left the court in no doubt that the convictions were unsafe.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed both convictions as unsafe: [2019] EWCA Crim 2287.
• Crown Court at Kingston upon Thames On 6 April 2018, convicted the appellant of two counts of rape and imposed consecutive terms of seven and 13 years’ imprisonment. No citation for the Crown Court judgment is stated.